Thomas et al v. The Alcoholic Rehabilitation Services of Hawaii, Inc.
Filing
136
ORDER GRANTING: (1) DEFENDANT'S MOTION FOR SUMMARY JUDGMENT RE: PLAINTIFF DEBORAH LEE THORPE, PERSONAL REPRESENTATIVE OF THE ESTATE OF BLAKE SNYDER, DECEASED AND DEBORAH LEE THORPE, INDIVIDUALLY; AND (2) DEFENDANT'S MOTION FOR SUMMARY JUDGM ENT RE: PLAINTIFF MICHAEL THOMAS re 60 Motion for Summary Judgment; re 62 Motion for Summary Judgment. Signed by JUDGE LESLIE E. KOBAYASHI on 04/18/2016. The Thorpe Motion and the Thomas Motion, both filed by Defendant on August 24, 2015, are HEREBY GRANTED. There being no remaining claims, the Court DIRECTS the Clerk's Office to close this case on May 9, 2016, unless Plaintiffs file a motion for reconsideration of this Order by May 6, 2016 . (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL THOMAS; DEBORAH LEE
THORPE, Personal
Representative of the Estate
of Blake Snyder, Deceased;
DEBORAH LEE THORPE,
Individually,
)
)
)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
THE ALCOHOLIC REHABILITATION )
)
SERVICES OF HAWAII, INC.,
)
)
Defendant.
_____________________________ )
CIVIL 14-00176 LEK-KJM
ORDER GRANTING: (1) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT RE:
PLAINTIFF DEBORAH LEE THORPE, PERSONAL REPRESENTATIVE OF THE
ESTATE OF BLAKE SNYDER, DECEASED AND DEBORAH LEE THORPE,
INDIVIDUALLY; AND (2) DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT RE: PLAINTIFF MICHAEL THOMAS
On August 24, 2015, Defendant Alcoholic Rehabilitation
Services of Hawaii, Inc. (“Defendant”) filed its:
Motion for
Summary Judgment Re: Plaintiff Deborah Lee Thorpe, Personal
Representative of the Estate of Blake Snyder, Deceased and
Deborah Lee Thorpe, Individually (“Thorpe Motion”); and Motion
for Summary Judgment Re: Plaintiff Michael Thomas (“Thomas
Motion,” collectively “Summary Judgment Motions”).
60, 62.]
[Dkt. nos.
On March 22, 2016, pro se Plaintiff Deborah Lee Thorpe,
personal representative of the Estate of Blake Snyder (“Snyder”),
deceased, and Deborah Lee Thorpe, individually (“Thorpe”), and
Plaintiff Michael Thomas (“Thomas,” collectively “Plaintiffs”)
filed a joint memorandum in opposition.1
[Dkt. no. 123.]
On
March 29, 2016, Defendant filed two separate replies to the
memorandum in opposition, one in support of the Thorpe Motion and
the other in support of the Thomas Motion.
[Dkt. nos. 125, 126.]
In an entering order filed on March 1, 2016 (“3/1/16
EO”), the Court found these matters suitable for disposition
without a hearing, pursuant to Rule 7.2(d) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).2
[Dkt. no. 119.]
After careful
consideration of the Summary Judgment Motions, supporting and
opposing memoranda, and the relevant legal authority, Defendant’s
Summary Judgment Motions are HEREBY GRANTED for the reasons set
forth below.
1
On March 28, 2016, Plaintiffs filed an errata to their
memorandum in opposition, which consists of pages that Plaintiffs
inadvertently failed to submit to the Court (“Memorandum in
Opposition Errata”). [Dkt. no. 127.] Plaintiffs also provided
the Court with a second courtesy copy. [Dkt. no. 129.] The
Memorandum in Opposition Errata uses page numbers that correspond
to the missing pages in the memorandum in opposition, and the
Court will refer to these page numbers.
2
On October 8, 2015, and in lieu of a memorandum in
opposition to the Summary Judgment Motions, Plaintiffs filed a
request for a Fed. R. Civ. P. 56(d) continuance. [Dkt. no. 72.]
The Court reserved ruling on the Summary Judgment Motions pending
the outcome of two discovery-related motions that were set for
hearing before the magistrate judge. Once there was a final
resolution of the discovery-related motions, the Court denied
Plaintiffs’ Rule 56(d) request and set a new briefing schedule
for the Summary Judgment Motions. [3/1/16 EO at 2.]
2
BACKGROUND
The background of this case is well known to the
parties, and the Court will only repeat what is relevant to the
Summary Judgment Motions.
Defendant operates Hina Mauka, a
substance abuse treatment facility in Kaneohe, Hawai`i.
[Def.’s
Concise Statement of Facts in Supp. of Thorpe Motion (“Def.’s
CSOF in Supp. of Thorpe Motion”), filed 8/24/15 (dkt. no. 61),
Aff. of Alan Johnson (“Johnson Aff.”) at ¶ 1.3]
Thorpe states
that she is Snyder’s mother and the personal representative of
Snyder’s estate.
[Notice of Removal, filed 4/15/14 (dkt. no. 1),
Exh. A (“First Amended Complaint”) at ¶ 2.I.]
Thomas states that
he is a family friend who, during the relevant time period, was
assisting Snyder with starting a business and providing him
shelter.
[Id. at ¶¶ 7-9.]
In 2012, Thorpe attempted to get
Snyder admitted to Hina Mauka.
[Def.’s CSOF in Supp. of Thorpe
Motion, Decl. of Gregory K. Markham (“Markham Decl. in Supp. of
Thorpe Motion”), Exh. 1 (Def.’s Response to Pltf.’s First Request
for Production of Documents) (“Def.’s First Production of
Documents”) at 16-21 (Hina Mauka Intake/Referral Communication
Flow Sheet with notes from Souza).4]
According to Plaintiffs,
3
Alan Johnson is President and Chief Executive Officer of
Alcoholic Rehabilitation Services of Hawai`i, Inc. [Johnson Aff.
at ¶ 1.]
4
Defendant’s First Production of Documents is not
consecutively paginated, and the page numbers referenced here are
(continued...)
3
Snyder was also working with a case manager from APS Healthcare
named Elizabeth Gonzalez (“Gonzalez”) “who acted as a liaison
between Hina Mauka and [Snyder].”
¶ 13.]
[First Amended Complaint at
Plaintiffs contend that, on February 20, 2012, after
Gonzalez “called [Thorpe] to report that Hina Mauka had an open
bed,” Hina Mauka Admission Supervisor Mahikulani Souza (“Souza”)
called Snyder.
[Id.]
On February 21, 2012, Snyder signed a
release form that allowed Hina Mauka to request his medical
records, including information regarding any psychiatric
condition.
[Def.’s First Production of Documents at 42 (Hina
Mauka’s Consent to Release/Obtain Confidential Information,
signed by Snyder).5]
Souza and Snyder’s final telephone conversation took
place on March 28, 2012 (“3/28/12 Call”).
[Def.’s First
Production of Documents at 19.]
Thomas states that he was with
Snyder during the 3/28/12 Call.
[First Amended Complaint at
¶¶ 20-21.]
Plaintiffs allege, inter alia, that:
Snyder was
unable to participate in the 3/28/12 Call because he was not
4
(...continued)
those assigned by this district court’s electronic case filing
system.
5
Defendant’s First Production of Documents was also
submitted in support of the Thomas Motion. See Def.’s Concise
Statement of Facts in Supp. of Thomas Motion (“Def.’s CSOF in
Supp. of Thomas Motion”), filed 8/24/15 (dkt. no. 63), Decl. of
Gregory K. Markham (“Markham Decl. in Supp. of Thomas Motion”),
Exh. 1.
4
feeling well and did not communicate well on the phone; Souza
asked Thomas many questions about Snyder’s medical history and
substance use, even after being informed that Thomas was not
Snyder’s guardian; and, after the 3/28/12 Call, Souza called
Gonzalez and informed her that Snyder would not be admitted to
Hina Mauka because Thomas “coached” him during the phone call.
[Id. at ¶¶ 24-31.]
Further, Plaintiffs argue that Snyder was not
admitted to Hina Mauka “on account of his disabilities,” and that
Souza’s position that Thomas coached Snyder is pretextual.
[Id.
at ¶ 33.]
Plaintiffs state that, after the 3/28/12 Call, Thomas
called Hina Mauka to speak with Souza about Snyder.
Plaintiffs
also state that Thomas called Hina Mauka Human Resources Director
Cyndi Unga, who assured him that the decision regarding Snyder’s
admission to Hina Mauka was not because he was “coached” on the
3/28/12 Call.
[Id. at ¶¶ 34-37.]
According to Plaintiffs,
however, Souza “published repeated statements” that Snyder was
not admitted to Hina Mauka because of Thomas’s “coaching.”
[Id.
at ¶ 42.]
Plaintiffs submit that Snyder became severely depressed
after finding out that he would not be admitted to Hina Mauka,
and Snyder unfortunately passed away on May 6, 2012.
¶¶ 8, 39, 44.]
[Id. at
Plaintiffs state that Thorpe blamed Thomas for
the fact that Snyder was not admitted to Hina Mauka.
5
[Id. at
¶ 45.]
As a result, according to Plaintiffs:
Thomas’s
relationship with Snyder’s family was “destroyed”; he had to seek
professional help; and he was diagnosed with post-traumatic
stress disorder.
[Id. at ¶ 50.]
Plaintiffs bring claims for:
violation of § 504 of the
Rehabilitation Act of 1973 (“§ 504”), 29 U.S.C. § 794 (“Count
I”); [id. at ¶¶ 53-56;] intentional infliction of emotional
distress (“IIED” and “Count III”); [id. at ¶¶ 65-67;] and
punitive damages (“Count IV”) [id. at ¶¶ 68-70].
Thomas brings a claim for slander (“Count II”).
In addition,
[Id. at ¶¶ 57-
64.] Plaintiffs seek special, general, and punitive damages, as
well as “other and further relief as the court may deem just and
proper,” including attorneys’ fees and costs.
[Id. at Prayer for
Relief ¶¶ a-d.]
The Thorpe Motion moves for summary judgment on all of
the claims brought by Thorpe as personal representative of
Snyder’s estate, and Thorpe in her individual capacity.
Motion at 2.]
[Thorpe
The Thomas Motion moves for summary judgment on
all claims brought by Thomas.
[Thomas Motion at 2.]
DISCUSSION
Plaintiffs are proceeding pro se, and the Court must
liberally construe their filings.
See, e.g., Pregana v.
CitiMortgage, Inc., Civil No. 14-00226 DKW-KSC, 2015 WL 1966671,
at *2 (D. Hawai`i Apr. 30, 2015) (“The Court liberally construes
6
the [plaintiffs’] filings because they are proceeding pro se.”
(citing Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987))).
I.
Count I – § 504
Defendant argues that Count I fails as a matter of law.
[Mem. in Supp. of Thorpe Motion at 5-7; Mem. in Supp. of Thomas
Motion at 5-7.]
Plaintiffs argue that there is a genuine issue
of material fact regarding Defendant’s refusal to admit Snyder to
Hina Mauka because:
“[i]t can be inferred from [Souza’s] conduct
that Defendant knew its practices and treatment of Plaintiffs
could violate the federal requirement to properly accommodate
[Snyder]”; Defendant did not “exercise due diligence” during the
intake process, including Defendant’s refusal to allow Thomas to
bring Snyder to Hina Mauka for an in-person interview; there were
beds available for Snyder at Hina Mauka; and Defendant knew that
Snyder was diagnosed with schizophrenia.
[Mem. in Opp. at 9-10.]
Section 504 states, in pertinent part:
(a)
Promulgation of rules and regulations
No otherwise qualified individual with a
disability in the United States, as defined in
section 705(20)[6] of this title, shall, solely by
reason of her or his disability, be excluded from
the participation in, be denied the benefits of,
or be subjected to discrimination under any
program or activity receiving Federal financial
6
Section 705(20) states, in relevant part, that an
“individual with a disability” is anyone with “a physical or
mental impairment which for such individual constitutes or
results in a substantial impediment to employment.”
29 U.S.C. § 705(2)(A)(i).
7
assistance or under any program or activity
conducted by any Executive agency or by the United
States Postal Service. . . .
(b)
“Program or activity” defined
. . . .
(3)(A) an entire corporation, partnership, or
other private organization, or an entire sole
proprietorship –
(i) if assistance is extended to such
corporation, partnership, private
organization, or sole proprietorship as
a whole; or
(ii) which is principally engaged in the
business of providing education, health
care, housing, social services, or parks
and recreation[.]
29 U.S.C. § 794.
This district court has stated:
Section 504 of the Rehabilitation Act
prohibits discrimination against an individual
solely by reason of his or her disability by
entities who receive federal funding, including
private organizations. 29 U.S.C. § 794(b)(3).
Section 504, like the [Americans with Disabilities
Act (“ADA”)], ensures that disabled individuals
are not denied benefits or participation in
programs “solely by reasons of her or his
disability.” 29 U.S.C. § 794(a). Put another
way, Section 504 seeks to ensure that disabled
individuals receive the same treatment as those
who are not disabled. Chandler v. City of Dallas,
2 F.3d 1385, 1389-90 (5th Cir. 1993).
A prima facie claim under Section 504 of the
Rehabilitation Act requires a plaintiff to allege
the following four elements: (1) that he is a
handicapped individual under the Act; (2) that he
is “otherwise qualified” for the benefit sought;
(3) that he was discriminated against solely by
reason of his handicap; and (4) that the program
8
or activity in question receives federal financial
assistance. Dempsey v. Ladd, 840 F.2d 638, 640
(9th Cir. 1987).
DiCrescenzo v. UnitedHealth Grp., Inc., CIVIL NO. 15-00021 DKWRLP, 2015 WL 5472926, at *7 (D. Hawai`i Sept. 16, 2015).
Here,
for purposes of the Summary Judgment Motions, Defendant does not
dispute that Snyder was disabled under § 504, see Mem. in Supp.
of Thorpe Motion at 6; Mem. in Supp. of Thomas Motion at 6, and
that Defendant received federal funding during the relevant time
period, see Johnson Aff. at ¶ 3 (“Hina Mauka received federal
funding in March 2012.”).
It is clear from the record, however, that Defendant’s
decision was based on concern that Hina Mauka’s program was not
appropriate for Plaintiff, and not based solely on Snyder’s
disability.
Specifically, on March 21, 2012, Souza noted that:
Snyder has “limited verbal understanding”; “his comprehension
[and] recall is limited”; and “[Hina Mauka] may be too
cognitive/fast paced/intrusive.”7
Documents at 17-18.]
[Def.’s First Production of
Further, Souza’s March 28, 2012 notes state
that Hina Mauka may use groups that are “too large” for Snyder.8
7
The Court questions neither Snyder’s intelligence nor his
ability to communicate, but notes that the First Amended
Complaint appears to support Souza’s observations. See First
Amended Complaint at ¶ 46 (“Given Blake’s specific disability,
Blake was not loquacious or overtly verbal, but Blake could
communicate.”).
8
A psychiatric evaluation performed on February 29, 2012,
(continued...)
9
[Id. at 19.]
Because of this, Souza planned to refer Snyder to a
different program.
See id. at 18 (“Poailani - options for his
[treatment] there”), 19 (“Plan:
Refer to Poailani”).9
The record also shows that Defendant did not deny
Snyder services.
See, e.g, Def.’s First Production of Documents
at 20 (Souza’s notes, which state “[t]his is not a denial of
[services] but a recommendation to a more appropriate dual
diagnosis facility.” (emphasis in original)); Def.’s First
Production of Documents at 22 (letter from Evon K. Silva, Manager
of Adult Clinical Services at Hina Mauka, dated 9/2/12, stating
that “[t]here was no denial of services”).
Moreover, insofar as
Plaintiffs bring Count I based on Defendant’s alleged failure to
conduct the intake with due diligence, Plaintiffs provide no
authority to support this claim, and the Court does not know of
any such authority.
On a motion for summary judgment “the nonmoving party’s
evidence is to be believed, and all justifiable inferences are to
be drawn in that party’s favor,” Miller v. Glenn Miller Prods.,
Inc., 454 F.3d 975, 988 (9th Cir. 2006), but “the nonmoving party
‘must do more than simply show that there is some metaphysical
8
(...continued)
also notes that Snyder had “difficulty communicating.”
[Defendant’s First Production of Documents at 28 (APS Healthcare
Psychiatric Evaluation).]
9
Po`ailani is a dual diagnosis treatment center located in
Kailua, Hawai`i.
10
doubt as to the material facts,’” Rodgriguez v. Gen. Dynamics
Armament & Tech. Prods., Inc., 696 F. Supp. 2d 1163, 1176 (D.
Hawai`i 2010) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538
(1986) (footnote omitted)).
It is clear to the Court that Hina
Mauka did not violate § 504.10
The Court FINDS that there is no
question of material fact and CONCLUDES that Defendant is
entitled to judgment as a matter of law.11
See Fed. R. Civ. P.
10
Further, insofar as Plaintiffs allege that Hina Mauka was
required to admit Snyder, see Mem. in Opp. at 9 (“It was thus
substantially likely that Blake Snyder’s federal right to be
properly accommodated pursuant to Section 504 would be
impaired.”), they are incorrect. It is axiomatic that § 504
cannot require a substance abuse treatment center to admit every
individual that seeks assistance.
11
The Court questions whether, in their individual
capacities, Thorpe and Thomas have standing to bring Count I.
Remedies for violations of § 504 are “available to any person
aggrieved by any act or failure to act by any recipient of
Federal assistance or Federal provider of such assistance.” 29
U.S.C. § 794a(a)(2). Other district courts in the Ninth Circuit
have found that, “[t]he broad ‘any person’ language in the
enforcement provision indicates Congress’ intent to grant
standing as broadly as is permitted under Article III.” Cortez
v. City of Porterville, 5 F. Supp. 3d 1160, 1166 (E.D. Cal.
2014). In Cortez, the district court found that a non-disabled
plaintiff had standing to bring an associational discrimination
claim under § 504, but that “[a] plaintiff must demonstrate that
he himself was harmed; that is, that he suffered a specific,
separate, and direct injury to himself caused by defendant’s
actions.” Id. at 1165-66 (citing Glass v. Hillsboro School Dist.
1J, 142 F. Supp. 2d 1286, 1287-88 (D. Or. 2001)); see also
Collins v. Dartmouth-Hitchcock Med. Ctr., Civil No. 13-cv-352-JD,
2015 WL 268842, at *8 (D.N.H. Jan. 21, 2015) (“To be actionable,
the non-disabled persons themselves must ‘establish an injury
causally related to, but separate and distinct from, a disabled
person’s injury under the statute.’” (alteration omitted)
(continued...)
11
56(a).
Insofar as they seek summary judgment on Count I, the
Summary Judgment Motions are GRANTED.
II.
Count II – Slander
Defendant argues that Thomas has not shown that it made
a false or defamatory statement, and that “‘truth is an absolute
defense to defamation.’”
[Mem. in Supp. of Thomas Motion at 9
(emphasis omitted) (quoting Wilson v. Freitas, 121 Hawaii 120,
128, 214 P.3d 1110, 1118 (Ct. App. 2009)).]
Further, Defendant
contends that, while Thorpe states that she has not spoken with
Thomas since she learned of the “coaching” allegations, the
record is replete with examples of them speaking, including the
fact that they filed the instant case together.
[Id. at 12.]
Plaintiffs argue that “Thomas did encourage [Snyder] to speak and
to try to answer Ms. Souza’s questions without hanging up . . . .
However, Defendant is attempting to argue that ‘encourage’ is
11
(...continued)
(quoting Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 280
(2d Cir. 2009))).
While Plaintiffs allege that “Defendants’ [sic] practices,
policies, and procedures and omissions, as described above, have
violated the rights of Plaintiffs secured by Section 504 by
discriminating against these individuals solely on the basis of
disability,” [First Amended Complaint at ¶ 56,] Thorpe and Thomas
have not pled separate and distinct injuries, nor have they
established that, as of March 2012, they personally had a
qualifying disabilities under § 504. Here, the Court has
concluded that Defendant did not violate § 504, and Thorpe and
Thomas therefore cannot maintain an associational claim. The
Court does not need to reach the § 504 standing issue at this
time.
12
synonymous with ‘coach.’
Plaintiffs dispute Defendant’s
assertion that Plaintiff Thomas ‘coached’ [Snyder] by telling
[Snyder] what to say.”
[Mem. in Opp. at 12 (emphasis in
original).]
“Hawaii views claims for slander and libel under the
defamation rubric.”
McNally v. Univ. of Haw., 780 F. Supp. 2d
1037, 1058 (D. Hawai`i 2011) (some citations omitted) (citing
Bauernfiend v. AOAO Kihei Beach Condominiums, 99 Hawai`i 281, 282
n.2, 54 P.3d 452 n.2, 453 (Haw. 2002)).
In order to sustain a claim for defamation, a
plaintiff must establish the following four
elements:
(a) a false and defamatory statement
concerning another;
(b) an unprivileged publication to a third
party;
(c) fault amounting at least to negligence on
the part of the publisher [actual malice
where the plaintiff is a public figure]; and
(d) either actionability of the statement
irrespective of special harm or the existence
of special harm caused by the publication.
Gold v. Harrison, 88 Hawai`i 94, 100, 962 P.2d 353, 359 (1998)
(alteration in original) (citation omitted).
A defamatory
statement
“. . . tends to harm the reputation of another as
to lower him in the estimation of the community or
deter third persons from associating or dealing
with him.” Fernandes v. Tenbruggencate, 65 Haw.
226, 228, 649 P.2d 1144, 1147 (Haw. 1982) (citing
Restatement (Second) Torts § 559 (1977)). The
13
Fernandes court explained that, “[w]hether a
communication is defamatory ‘depends among other
factors, upon the temper of the times, the current
of contemporary public opinion, with the result
that words, harmless in one age, in one community,
may be highly damaging to reputation at another
time or in a different place.’” Id.
McNally, 780 F. Supp. 2d at 1058-59 (some alterations in
original).
Even if Thomas could prove the other elements of a
defamation claim, Souza’s alleged statements regarding Thomas
“coaching” Snyder are not defamatory.12
Moreover, while it is
clear that, at least for a time,13 Thorpe and Thomas had a
12
As Defendant noted, under Hawai`i law, “truth is an
absolute defense to defamation.” Gonsalves v. Nissan Motor Corp.
in Haw., Ltd., 100 Hawai`i 149, 173, 58 P.3d 1196, 1220 (2002)
(alteration, citation, and internal quotation marks omitted).
Thomas stated that during the 3/28/12 Call:
[Snyder] seemed to be uncomfortable and he did not
begin speaking other than to give “yes” or “no”
answers. There then began to be long pauses
during which [Snyder] did not speak at all. I did
encourage [Snyder] to continue to speak and to try
to answers [sic] Ms. Souza’s questions, without
hanging up.
[Markam Decl. in Supp. of Thomas Motion, Exh. 2 (Pltf.’s Response
to Def.’s First Request for Answers to Interrogatories and First
Request for Production of Documents) at 11.] Moreover,
Plaintiffs state that “[t]he fact that Plaintiff Thomas did
encourage [Snyder] to speak and to try to answer Ms. Souza’s
questions without hanging up is not disputed.” [Mem. in Opp. at
12.] While not necessary to the instant Order, the Court would
likely agree with Souza’s assessment that Thomas “coached” Snyder
during the 3/28/12 Call.
13
Plaintiffs allege that, “[s]ince the time [Snyder] was
not admitted to Hina Mauka on March 28, 2012, [Thorpe] has
refused to talk to Plaintiff Michael Thomas.” [First Amended
Complaint at ¶ 43.] The veracity of this representation is
(continued...)
14
strained relationship, a fissure in a personal friendship does
not give rise to a cognizable claim for slander.
The Court FINDS
that there is no issue of material fact, and CONCLUDES that
Defendant is entitled to judgment as a matter of law.
The Thomas
Motion, insofar as it seeks summary judgment on Count II, is
GRANTED.
III. Count III – IIED
Defendant argues that it is entitled to summary
judgment on Count III because its actions were not “outrageous.”
See Mem. in Supp. of Thorpe Motion at 9; Mem. in Supp. of Thomas
Motion at 15.
Plaintiffs submit that the Summary Judgment
Motions should be denied as to Count III because there is, at the
very least, a genuine issue of material fact regarding the
“outrageous” nature of, inter alia:
(1) Souza allegedly refusing
to reschedule the 3/28/12 Call; (2) Souza asking Thomas questions
about Snyder; (3) and Defendant’s alleged refusal to allow Thomas
to bring Snyder to Oahu for an in-person interview at Hina Mauka.
[Mem. in Opp. at 15-17, 19; Mem. in Opp. Errata at 18, 20.]
Under Hawai`i law, an IIED claim requires:
“(1) that
the act allegedly causing the harm was intentional or reckless,
13
(...continued)
severely undermined by the fact that Thorpe and Thomas are
pursuing the instant lawsuit together and have filed all motions
and memoranda jointly, including the memorandum in opposition to
the Summary Judgment Motions. See Mem. in Opp. at 22 (the last
page of the memorandum in opposition, which is signed by Thorpe
and Thomas).
15
(2) that the act was outrageous, and (3) that the act caused (4)
extreme emotional distress to another.”
Barber v. Ohana Military
Cmtys., LLC, Civil No. 14-00217 HG-KSC, 2014 WL 3529766, at *10
(D. Hawai`i July 15, 2014) (citing Enoka v. AIG Hawaii Ins. Co.,
Inc., 128 P.3d 850, 872 (Haw. 2006)).
This district court has
stated:
In explaining the type of “outrageous” conduct
that gives rise to a claim for intentional
infliction of emotional distress, the Hawaii
Supreme Court has noted:
It has not been enough that the defendant has
acted with an intent which is tortious or
even criminal, or that he has intended to
inflict emotional distress, or even that his
conduct has been characterized by “malice,”
or a degree of aggravation which would
entitle the plaintiff to punitive damages for
another tort. Liability has been found only
where the conduct has been so outrageous in
character, and so extreme in degree, as to go
beyond all bounds of decency, and to be
regarded as atrocious, and utterly
intolerable in a civilized community.
Generally, the case is one in which the
recitation of the facts to an average member
of the community would arouse his resentment
against the actor, and lead him to exclaim,
“Outrageous!”
Dunlea v. Dappen, 83 Haw. 28, 38, 924 P.2d 196,
206 (1996).[14] “The question whether the actions
of the alleged tortfeasor are unreasonable or
outrageous is for the court in the first instance,
although where reasonable people may differ on
that question it should be left to the jury.”
Young v. Allstate Ins. Co., 119 Haw. 403, 429, 198
14
The Court notes that Dunlea was abrogated on other
grounds by Hac v. University of Hawai`i, 102 Hawai`i 92, 73 P.3d
46 (2003).
16
P.3d 666, 692 (2008).
Martin v. Ampco Sys. Parking, Civil No. 12-00598 SOM/RLP, 2013 WL
5781311, at *15-16 (D. Hawai`i Oct. 24, 2013), reconsideration
granted, 2013 WL 6624124 (Dec. 16, 2013).15
Even drawing all
justifiable inferences in favor of Plaintiffs, the claim for IIED
is insufficient.
The actions cited here – a telephone call
scheduling decision; routine questions about a prospective
patient’s history – even if improperly directed at a third
person;16 and Hina Mauka’s intake process in general – are not
outrageous.
The Court FINDS that there is no issue of material
15
The Motion for Reconsideration is not relevant to the
instant Summary Judgment Motions. See Martin, 2013 WL 6624124 at
*1 (stating that the Motion for Reconsideration relates to Count
VI, which has to do with an allegedly illegal revocation of a
work permit).
16
Plaintiffs repeatedly allude to a violation of the Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”),
42 U.S.C. § 1320d, et seq. See, e.g., First Amended Complaint at
¶ 28 (“At no time during that telephone conversation did Ms.
Souza cut Plaintiff’s conversation with her short, i.e. by
stating that she may have been more uncomfortable talking with
Plaintiff because Plaintiff was not [Snyder’s] parent or
‘guardian’.”); Mem. in Opp. Errata at 18 (“Plaintiff Thomas
asserts that at no time during the March 28, 2012[] phone call
did Ms. Souza ask Blake Snyder’s permission to ask Plaintiff
Thomas any questions.”). Insofar as Plaintiffs seek to establish
that the 3/28/12 Call violated HIPAA, this claim is not pled in
the First Amended Complaint and therefore must be rejected. Even
assuming, arguendo, that this claim was properly before the
Court, it would have to be dismissed because “HIPAA itself does
not provide for a private right of action.” Webb v. Smart
Document Sols., LLC, 499 F.3d 1078, 1082 (9th Cir. 2007)
(citation omitted); see also Wheeler v. Hilo Med. Ctr., Inc.,
Civil No. 09-00533 JMS/KSC, 2010 WL 1711993, at *7 (D. Hawai`i
Apr. 27, 2010) (“HIPAA does not give rise to a private cause of
action.” (citations omitted)).
17
fact, and CONCLUDES that Defendant is entitled to judgment as a
matter of law.
The Summary Judgment Motions, insofar as they
seek summary judgment on Count III, are HEREBY GRANTED.
IV.
Count IV – Punitive Damages
Finally, Defendant argues that “Plaintiff has failed to
establish actual damages sufficient to impose punitive damages.”
[Mem. in Supp. of Thorpe Motion at 10; Mem. in Supp. of Thomas
Motion at 17.]
Plaintiffs argue that they “have established a
claim for relief on their slander and IIED claims” and have
therefore “established actual damages sufficient to impose
punitive damages.”
[Mem. in Opp. Errata at 21.]
Count IV is not
a cognizable claim because “[a] claim for punitive damages is not
an independent tort, but a remedy that is incidental to another
cause of action.”
Liberty Mut. Ins. Co. v. Sumo-Nan LLC, Civil
No. 14-00520 DKW-KSC, 2015 WL 2449480, at *6 (D. Hawai`i May 20,
2015) (some citations omitted) (citing Ross v. Stouffer Hotel Co.
(Hawai`i) Ltd., 879 P.2d 1037, 1049 (Haw. 1994)).
The Court
therefore FINDS that there is no issue of material fact, and
CONCLUDES that Defendant is entitled to judgment as a matter of
law.
The Summary Judgment Motions, insofar as they seek summary
judgment on Count IV, are GRANTED.
CONCLUSION
Snyder’s death was tragic, and the Court has great
sympathy for Thorpe and Thomas.
Yet, even where it may cause a
18
party sorrow or frustration, the Court must apply the law.
On
the basis of the foregoing, the Thorpe Motion and the Thomas
Motion, both filed by Defendant on August 24, 2015, are HEREBY
GRANTED.
There being no remaining claims, the Court DIRECTS the
Clerk’s Office to close this case on May 9, 2016, unless
Plaintiffs file a motion for reconsideration of this Order by
May 6, 2016.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 18, 2016.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MICHAEL THOMAS, ET AL. VS. THE ALCOHOLIC REHABILITATION SERVICES
OF HAWAII, INC.; CIVIL 14-00176 LEK-KJM; ORDER GRANTING: (1)
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT RE: PLAINTIFF DEBORAH LEE
THORPE, PERSONAL REPRESENTATIVE OF THE ESTATE OF BLAKE SNYDER,
DECEASED AND DEBORAH LEE THORPE, INDIVIDUALLY; AND (2)
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT RE: PLAINTIFF MICHAEL
THOMAS
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